A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2 to 1, the court held — unremarkably, you might think — that issue advocacy ads can run during an election campaign, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance “reformers”) as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the American Civil Liberties Union and the National Rifle Association.

And Wisconsin Right to Life. It is another organization by which people assemble (see the First Amendment) to speak (see it again) in order to seek redress of grievances (the amendment, one more time). In 2004 Wisconsin Right to Life was distressed because Wisconsin’s senators, Russ Feingold and Herb Kohl, were helping to block confirmation votes on some of President Bush’s judicial nominees. It wanted to run ads urging people to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.”

How dare these people exercise their First Amendment rights. And it is the McCain-Feingold’s law assault on freedom of speech that becomes apparent in the opinion of the dissent judge in the case that Will writes about:

The dissenting judge wanted to examine the “intent” of the ads by examining their “context,” looking for clues as to whether the group hoped to not only advocate an issue but influence an election. Imagine: Judges scouring the political landscape, searching for evidence (people’s past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is “really” the functional equivalent of electioneering (express advocacy).

Such a process would necessarily be so protracted that no challenged ad could be authorized in time for an election. Besides, Bob Bauer, a Democratic campaign lawyer, rightly warns that the prospect of such inquiries should “make a sensible citizen’s blood run cold.” An uncircumscribed inquiry into “intent” would become “an intrusive process” in which an organization’s internal communications would be subpoenaed and political operatives and consultants would be “put under oath and questioned about what they meant and intended and thought.”

In other words, a process into which no judge should be involved to begin with. The Supreme Court made it’s first mistake when it upheld McCain-Feingold to begin with. Hopefully, it will use this case, and others like it coming down the pike, to correct such an obvious mistake.

Smoking in District bars is about to be snuffed out, but not without a last, hazy hurrah.

The Jefferson Hotel plans to pass out cigars and cigarettes and have a hookah handy in its fabled lounge on New Year’s Eve.

McFadden’s Restaurant and Saloon already had its last butt stubbed out Dec. 19 in a cigar-filled night billed as “One Last Smoke.”

Nonsmokers may now breathe a sigh of relief.

Nightclubs and restaurant bars must be smoke-free by Tuesday to comply with a ban that most restaurant, bar and hotel owners opposed but that antismoking advocates pushed through the D.C. Council in January.

“Everybody’s waiting to see what happens,” said Paul J. Cohn, a restaurateur for 25 years and vice chairman of the Restaurant Association Metropolitan Washington.

The smoking ban began incrementally. In April, smoking became illegal in the dining areas of restaurants. At 12:01 a.m. Tuesday, the prohibition extends to bars.

And a sad end it will be. Gone will be the great opportunities to smoke fine cigars at the Round Robin Bar or Off The Record. But, at least we know Big Brother cares about us.

Republicans lost their U.S. House and Senate majorities and 350 seats in state legislatures across the country. The early post-election Kansas experiences show that a recovery could be difficult because the splits inside the party between social conservatives and moderates will not be easily healed.

Given the defeats in Kansas of religious conservatives such as [former Republican Governor Phill] Kline, U.S. Rep. Jim Ryun (R) and some members of the State Board of Education, one Kansas political analyst expected the GOP “would be ready to mend fences and move forward.”

But that has not yet happened.

“I think the divide between the moderates and conservatives is deepening rather than closing,” said Kansas State University professor Joseph Aistrup. “This type of politics is continuing into our future, at least another four years.”

Kline was the leader of that faction of the Kansas GOP that aligned itself with the evangelical far-right, emphasizing opposition to abortion under nearly all circumstances and attempting to insert religious views about the origin of man in to science classrooms. While this may have made the far-right in the party happy, it alienated Democrats who might have otherwise voted Republican, as well as members of Kline’s own party:

Kansas Democrats and moderate Republicans fought back this year. In the midterm elections, Democrat Nancy Boyda stunned five-term incumbent Ryun, while moderate Republicans Morrison and his friend Mark Parkinson, a former chairman of the Kansas GOP, changed parties and easily won statewide office.

Kline is not alone, of course. Another Kansas politician is running for President on the theory that appealing to the Pat Robertson crowd is the key to success:

More recently, Sen. Sam Brownback (R-Kan.), a social conservative thought to be considering running for president, drew notice for holding up a federal judicial nomination when he learned the nominee had attended a commitment ceremony for a lesbian couple. He said he wanted to know whether she had presided.

What that has to do with her being a judge I still haven’t figured out.

The lesson from Kansas isn’t all that much different from the lesson the Republican Party should have learned from across the nation. By abandoning its belief in limited government ideas and aligning itself with forces that want to use the government as a tool for their own agendas, the GOP is sowing the seeds of its own irrelevance.

One of the more well-known slogans of hard-core libertarians is “Taxation is Theft.” It’s an easy slogan for those who believe in it, and it’s message is pretty clear — to a true believer, there is no moral distinction to be made between an IRS tax collector and a mugger who demands your wallet at gunpoint.

Libertarians are too fond of slogans such as Taxation is Theft and Taxation is Robbery. They get quite a charge out of it. And they do manage to get a good idea across to some people, people who see that taxation is, indeed, a form of expropriation, and that it is analogous to forms of theft such as robbery, and that maybe we can do better.

Perhaps we can pay for public goods without engaging in extortion and expropriation.

But to people who really want those public goods, and who are capable of elementary distinctions in language, they are not convinced by these slogans. They are put off by them.

And they have good reason to be. Taxation is not theft. Not really.

The distinction that Virkkala makes, while I don’t think that it’s one that radical libertarians will accept, is important:

Taxation is the expropriation of private property according to an established rate, as put into law by an established state.

Robbery and other forms of theft are illegal kinds of expropriation, and piecemeal at that. Taxation is a legal kind of expropriation.

To many libertarians, this distinction is not much of a distinction at all. They have pretty much thrown out the distinctions between legal and illegal, and are in a continual revolutionary mode of thinking, ready at a moment’s notice to throw out whole chunks of the rule of law and state practice.

So of course they equate all kinds of expropriation.

Virkkala is right, I think, to make the distinction between legal and illegal forms of expropriation, especially in a society where taxation is determined not by the fiat of a dictator but by the decision of democratically elected representatives. In such a society, rhetoric that compares the lady who collects property taxes down at city hall to a mafia thug just isn’t going to fly with most people:

The main reason radical libertarians will not get anywhere is their complete lack of understanding of the normal mindset, which is not constantly in revolutionary mode. Radical libertarians who trot out slogans such as taxation is theft do not address the respect a non-revolutionary has for the rule of law.

Indeed, because of this revolutionary stance — and I’m not talking about physical, bloody revolution so much as a particular stance regarding ideas and consent — these libertarians cannot deal with normal folk.

This, I think, is part of the reason that the Libertarian Party has never been able to succeed in any meaningful sense. With the exception of Ron Paul, most of the candidates that it has put forward for prominent public positions have tended to preach the rhetoric of radical libetarianism. More importantly, they have done nothing to address the question of “If not taxes, then what ?”

As Virkkala points out, one of the major issues in the American Revolution was taxation. But the Founders weren’t disputing the fact that a government had the power to levy taxes to fund its proper functions, they were fighting for the right of the colonies to tax themselves rather than pay taxes to a far-away King.

Those who believe in liberty today and who would like to see freedom advance in their lifetime would do well to heed Virkkala’s advice.

I believe we have to approach greater liberty with complete honesty. No rhetorical trickery.

And I regard slogans such as taxation is theft as something close to rhetorical trickery.

It may be that we will someday be able to support all worthy public projects without any taxation.

But however we manage to do this (and I’ve lots of ideas, not limited to simple slogans like the market will take care of it), it will have to be done within the framework of the rule of law.

And people in such a future society will have to regard the means used at that time in something other than constant revolutionary mode. Even if they can think of better ways, they will have to show some respect for the rule of law of the day.